Opinion
No. 05-03-01490-CR
Opinion Filed July 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-72310-WJ. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
Appellant Vernon Leandis Charles appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at life confinement. In six points of error, appellant generally contends (1) the trial court erred in overruling his Batson objection, (2) the trial court abused its discretion by denying his motion for mistrial after the State violated a discovery order, and (3) the trial court abused its discretion by denying his motion for mistrial following the admission of extraneous offense evidence. For the following reasons, we affirm the trial court's judgment. In his first through fourth points of error, appellant contends the trial court erred in overruling his Batson objection. See Batson v. Kentucky, 476 U.S. 79 (1986). In these points, appellant asserts the State exercised peremptory strikes against four African-American venirepersons because of their race. Under Batson, there is a three step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 365-69 (1991). First, the defendant must make a prima facie showing of discrimination. Purkett v. Elem, 514 U.S. 765, 768 (1995). The prosecutor must then articulate a race-neutral explanation for the strikes. Id. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. The ultimate burden of persuasion rests with and never shifts from the defendant. Id. The trial court's determination on the issue of intentional discrimination is a finding of fact entitled to great deference on appeal. Herndandez, 500 U.S. at 365. This is because the trial court's determination will largely turn on an evaluation of the prosecutor's credibility. Hernandez, 500 U.S. at 365. We review a trial court's decision on a Batson challenge under a clearly erroneous standard of review. Hernandez, 500 U.S. at 365-69; Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App. 1993). A reversal is mandated only if a review of the entire record leaves us with the definite and firm conviction that the trial court made a mistake. Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992). At the conclusion of voir dire, appellant objected that the State struck four African-American venirepersons (numbers 6, 15, 31 and 39) because of their race. The prosecutor stated that he struck venireperson number 6 because she indicated during voir dire that she would have a difficult time convicting in a murder case if the State were unable to present the murder weapon as well as forensic evidence linking the weapon to the offense. The prosecutor stated he struck venireperson number 15 because she stated on her jury questionnaire that she believed the criminal justice system was biased against minorities. The prosecutor stated he struck venireperson number 31 because he is a detention officer with the Dallas Sheriff's Department. Finally, the prosecutor stated he struck venireperson number 39 because she had an uncle who had served time for murder. Appellant does not dispute that the prosecutor's stated reasons for striking the four venirepersons were facially race neutral. Thus, he was required to rebut the State's explanations or show the explanations were merely a pretext or a sham. However, appellant never cross-examined the prosecutor or offered any evidence to show the stated reasons were pretexts for racial discrimination. Appellant's sole argument suggesting he met his burden is that he could find nothing in the record to show the stricken venirepersons could not be "fair and impartial." However, a race neutral explanation need not rise to a challenge for cause. Malone v. State, 939 S.W.2d 782, 784-85 (Tex.App.-Houston [14th Dist.] 1997, no pet.). We conclude appellant did not meet his burden to establish purposeful discrimination. We overrule appellant's points of error one through four. In his fifth point of error, appellant contends the trial court erred in admitting evidence that the State had failed to disclose to him prior to trial. Appellant filed a pretrial "Motion for Discovery" seeking to require the State to produce various types of evidence. In this point, appellant contends the State violated the trial court's discovery "order" by presenting evidence that it did not disclose prior to trial and that appellant had requested be disclosed. There is no general right to discovery in a criminal case. State ex. rel. Wade v. Stephens, 724 S.W.2d 141, 143 (Tex.App.-Dallas 1987, orig. proceeding). An exception exists if the trial court grants a motion for discovery and orders certain evidence be disclosed. Lindley v. State, 635 S.W.2d 541 (Tex.Crim.App. 1982). In such cases, the trial court should not admit evidence the prosecution has failed to properly disclose. Id. In this case, appellant has not directed us to any discovery order in the record. We have nevertheless reviewed the record and have found no such order. We conclude appellant has failed to show the State violated any discovery order. We overrule appellant's fifth point of error. In his sixth point of error, appellant contends the trial court abused its discretion by overruling his motion for new trial. At trial, one of the State's witnesses testified that appellant sold drugs. Appellant objected that the testimony was inadmissible extraneous offense evidence. The trial court sustained the objection and instructed the jury to disregard. Error in the admission of improper testimony is usually cured by the trial court's prompt instruction to disregard. See Martinez v. State, 17 S.W.3d 677, 689 (Tex.Crim.App. 2000). A mistrial is required only if an objectionable event is so emotionally inflammatory that curative instructions are unlikely to prevent the jury from being unfairly prejudiced against the defendant. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. ref'd). We conclude the complained-of evidence was not so inflammatory that the jury could not have reasonably followed the trial court's instruction. See Arrick v. State 107 S.W.3d 710, 721 (Tex.App.-Austin 2003, pet. ref'd); Cano v. State, 3 S.W.3d 99, 109 (Tex.App.-Corpus Christi 1999, pet. ref'd). We overrule appellant's sixth point of error.